1.1 In this document unless the context requires otherwise:
1.1.1. the "Company" means Hunter Design Associates Limited;
1.1.3 "Client" means a client of the Company;
1.1.3 the "Project" means the services to be supplied by the Company under any contract with the Client, whether as a one-off project, or on a retainer basis, or otherwise and if it is contemplated that any Project is to be carried out in two or more stages it shall include all of such stages whether the whole Project is the subject of one contract, or whether each stage of the contract is the subject of a separate contract, or otherwise in any manner;
1.1.4 references to the singular include the plural and vice versa;
1.1.5 references to any gender shall include all genders.
1.2 These terms and conditions shall be construed without reference to the headings which are for ease of reference only.
2.1 These terms and conditions shall apply to all contracts entered into between the Company and the Client for the supply by the Company of goods or services and shall prevail over any terms and conditions stipulated by the Client. These terms and conditions may only be varied or supplemented with the written agreement of an authorised officer of the Company.
2.2 Except where the Company is working for the Client on a retainer basis, if the Project is to be carried out in more than one stage and the contract covers more than one stage, the Client shall be entitled by written notice to cancel the remainder of the Project after completion of any stage. Where the Company is working for the Client on a retainer basis, the Company will agree with the Client separately the duration of the retainer or the period of notice required to terminate it.
3.1 Unless expressly agreed by the Company in writing, any fees specified in relation to any stage of the Project are to be treated as estimates only and are subject to review at any time to take account, inter alia, of changes in hourly rates of the personnel involved in the Project or of other cost fluctuations, additional work carried out at the request of the Client or other changes to the design brief, acceleration of the work at the request of the Client, failure by the Client to provide full and proper instructions and author's corrections (i.e. alterations to copy which the Client has prepared or approved).
3.2 The Company's fees do not include the cost of any bought-in goods or the cost of any sub- contracted services of any third party obtained for the purposes of the Project, including in respect of photography, illustrations and finished artwork, typesetting, printing and provision of dummies, courier and delivery charges, file transfer costs, or the cost of travelling and subsistence. All out-of-pocket expenditure incurred by the Company in connection with the Project including the cost of bought-in goods and services and sub-contracted items will be recharged to the Client.
3.3 Value Added Tax (VAT) and any other relevant taxes or levies shall, where applicable, be charged in addition on all fees and other amounts payable by the Client to the Company.
3.4 The Company shall commence work only upon receipt of an approved purchase order or similar from the Client.
3.5 It is the Company's normal practice to render an invoice at the end of each month in respect of services and goods supplied during that month with the balance of any fees and other costs in respect of any stage of the Project being charged at the end of that stage. However, the Company reserves the right to render interim invoices where appropriate depending on the work involved. This does not apply to work for the Client on a retainer basis and where the Company is working for the Client on a retainer basis the intervals at which the Company will render invoices to the Client will normally be set out in the proposal relating to the Project.
3.6 Subject as below, all charges rendered by the Company shall be payable within 30 days of the date of the Company's invoice. However:
3.6.1 the Company reserves the right to invoice and require payment of 50% of the fee payable for any stage of the Project prior to commencement of work on that stage;
3.6.2 the Company reserves the right to require the Client to make payment of any sums due in respect of goods or services obtained from any third party for the purposes of the Project on any earlier date as may be specified by the Company, or to pay in advance for any such goods or services or, at the Company's election, to make payment direct to the third party from whom such goods or services were or are to be obtained.
3.7 If in accordance with clause 2.2 above the Client elects to cancel the Project after any stage, the Company shall be entitled to invoice the Client in full for all work done up to the end of that stage. If the Client cancels or terminates the Project during any stage, the Company shall nevertheless be entitled (without prejudice to any other rights or remedies) to charge the Client in full for all work which was anticipated would be carried out during that stage.
3.8 If the Client cancels the Project or varies all or any part of its instructions to the Company, then the Client shall on demand reimburse to the Company any charges which the Company may incur by reason of such cancellation or variation. The Client shall also bear any additional costs incurred by the Company which result from changes to material previously submitted for approval and approved by the Client.
3.9 The Company shall be entitled to charge interest on all overdue amounts at the rate both before and after judgment of 8% plus the Bank of England base rate for business to business transactions per month from the due date for payment until payment has been made in full and shall also be entitled (without prejudice to any other rights or remedies) to suspend further performance of the contract and of any other contract then current between the Company and the Client and/or cancel the Project and any other Project then current insofar as it or they remain to be performed.
4.1 Times for performance or delivery are to be treated as estimates only and time shall not be of the essence.
5.1 The Client shall at no time acquire ownership of any goods and materials produced or supplied for the purposes of the Project. On completion of the Project and subject to payment in full of all sums payable in connection with the Project the Client shall be entitled to the use of such goods and materials to the extent necessary to enable it to use and reproduce the Company's designs in the manner and to the extent permitted by clause 6 below. Subject thereto the Company shall be entitled to require the Client to return such goods and materials to it at any time. All such goods and materials belonging to the Company and which are in the possession of the Client shall be kept safe and stored so that they can be readily identified as the Company's property and shall be at the Client's risk for so long as they are in the Client's possession.
5.2 All materials submitted by the Client to the Company for the purposes of the Project shall remain the property of the Client and shall at all times remain at the Client's risk.
5.3 Materials used or produced by the Company specifically for the Client will normally be stored by the Company in a secure and dry environment, for a period of 12 months only, following delivery of the finished material for which they were used or produced.
6.1 Subject to any express agreement in writing to the contrary, the copyright, design right and all other intellectual property rights throughout the world and all renewals and extensions thereof in all material which is prepared by the Company or commissioned by the Company from any third party, and in all the products of the services of the Company or services commissioned by the Company from any third party for the purposes of the Project, shall at all times remain vested in the Company.
6.2 Not withstanding that copyright and other intellectual property rights are vested in the Company:
6.2.1 when the final stage of the Project has been completed and the Company has received payment in full from the Client, the Client shall be entitled to use and reproduce, for such global territories and purposes expressly agreed between the Company and the Client, any material which is incorporated or reproduced in the final design concept accepted by the Client;
6.2.2 if the Project is cancelled for any reason prior to completion of the final stage the Client shall not be entitled to exploit the copyright or any other intellectual property rights in, or to make any use of or exploit in any way any work carried out by the Company for the Project or the products of any such work of any other ideas, information or other matter made known to the Client by the Company;
6.2.3 the Client shall not be entitled to make any use of or exploit in any way any work carried out by the Company or the products of any such work or any other ideas, information or other matter made known to the Client by the Company but not incorporated or reproduced in the final concept accepted by the Client at completion of the Project; and
6.2.4 the Company's fees for the Project have been determined on the basis that the Client shall not without the Company's prior written consent be entitled to make any use of any work prepared by the Company for the purposes of the Project except in its direct application for the particular purpose for which the Project is carried out and as agreed with the Client, and in the event that the Client wishes to make any additional use or reproduction of such work or material or to use or reproduce such work or material outside the use or territory originally agreed, or in the event that the Company agrees to assign any of its proprietary rights therein to the Client, the Company shall be entitled to make an additional charge.
6.3 Where at the request of the Client the Company incorporates into the Project any written or pictorial matter, the Client warrants that such matter does not infringe any statute or other law and does not infringe the copyright or any other rights of any third party and does not contain any matter which is defamatory and the Client undertakes to keep the Company fully and effectually indemnified in respect of any costs, claims, loss, liability or expenses suffered or incurred by the Company as a result of any breach of such warranty.
6.4 Whether or not copyright or other rights are assigned to the Client the Company reserves the right in all cases to be identified as the author of work carried out for the Client and all moral rights are reserved and asserted. In addition the Client must ensure that all work in which the Company retains the copyright contains a copyright notice in customary form and/or such other attribution or identification as the Company may require. The Client shall not be entitled to alter any work prepared by the Company except with the Company's written permission.
6.5 The Company shall be entitled to reproduce completed work carried out for the Client in connection with the promotion and advertisement of its business.
6.6 In order to maintain the highest design integrity, the Company shall be entitled to receive proofs and, unless it agrees to a smaller quantity, a minimum of l0 copies of any production run produced on the Client's behalf. The Company shall also be entitled at its election to require that it is retained to supervise the implementation of production in respect of any work designed by the Company.
6.7 Proposals made by the Company to the Client, together with all other material produced for the purposes of the Project which is not incorporated into the final design concept accepted and paid for by the Client, shall (except as may be required by law) be treated by the Client in the strictest confidence and not disclosed to any third party. The Client shall not be entitled to make any use thereof except for the purposes of implementing the Project through the Company or as the Company may otherwise agree.
6.8 All material the Company provides for research projects is intended for use solely to support the objectives of the Project. In some instances, this may include packcepts, straplines, creative positioning statements, logos, illustrations and other creative material. Unless it has been expressly agreed otherwise, IPR in all creative aspects of the material the Company has authored shall remain vested in the Company, and further use beyond the boundaries of the research project is strictly forbidden without prior written consent from the Company and agreement on appropriate fees. Unauthorised use in any form whatsoever is strictly forbidden and will breach the Company’s copyright.
6.9 Except as may be required by law, the Company undertakes to maintain in the strictest confidence all
documents and other information concerning the Client's business as are made available in relation to the Project and not to make any use of any such documents and information except as may be necessary for the purposes of the Project.
6.10 The obligations of confidentiality contained in this clause shall survive the termination of the contract and of the Company's relationship with the Client.
7.1 Without prejudice to any other provisions of these terms and conditions it will be the Client's responsibility (and not the responsibility of the Company):
7.1.1 to ensure that any work carried out by the Company does not infringe any intellectual property rights or other rights of any third party and complies with all legal requirements or applicable codes of practice in the country for which the work is intended. The Company will not knowingly act in any way which constitutes an infringement of any third party rights or of any legal requirements or codes of practice and will be pleased, if the Client requests, to co-operate with the Client in relation to any investigation which the Client may wish to carry out in regard to the aforementioned matters;
7.1.2 in appropriate cases to correct any errors in artwork and proofs submitted to the Client by the Company or any third party for the purposes of checking;
7.1.3 to ensure that any materials supplied or selected by the Client (including any materials which may be suggested or recommended by the Company) are suitable for use for the purposes of the Project. The Company shall be entitled to reject any such materials which appear to be unsuitable and to make an additional charge for materials which it is obliged to acquire in substitution for such materials;
7.1.4 to ensure that quantities of any materials supplied by the Client for the purposes of the Project are adequate to cover normal spoilage in use;
7.1.5 in relation to advertising copy produced by the Company for the Client, to ensure that the copy does not contain any unjustified claims concerning the Client's goods or services; and
7.1.6 to take such steps as the Client considers appropriate to protect any intellectual property or other rights which it may acquire arising from the Project.
8.1 The Company shall act as principal and not as agent in any dealings with third parties undertaken on behalf of the Client provided that the Company shall be entitled to elect and be treated as agent for the Client. Subject to the Client keeping the Company indemnified in respect of all costs and expenses thereby incurred, the Company shall take such action as the Client may request to enforce any rights which it may have as principal against any persons from whom it has obtained goods or services for the purposes of the Project.
8.2 Any limitations or liabilities arising out of the relationship between the Company and any third party from whom goods or services are obtained for the purposes of the Project shall be passed on to the Client by the Company so that, for example, where the third party excludes or limits its liability in such a way as to restrict or prejudice the Company's ability to comply with these terms and conditions or with the Client's instructions, then these terms shall be amended accordingly.
9.1 Subject to clause 9.2 and save as regards any matter for which it is not possible in law to exclude or limit liability:
9.1.1 the Company shall be responsible for direct loss only and not for any consequential loss, whether or not arising from negligence or failure of performance (and for this purpose consequential loss means any loss of anticipated profits, damage to reputation or goodwill, loss of future business, damages, costs or expenses payable to any third party or any indirect losses); and
9.1.2 (without prejudice to clause 9.1.1) the liability of the Company in respect of any claim for any loss or damage regardless of how the said loss or damage arises (including as a result of any negligence or failure to perform on the part of the Company or its agents or sub-contractors) shall in no event exceed the sum of £250,000 in respect of any one event or series of events and the Client undertakes to keep the Company indemnified in respect of all losses or damages exceeding such amount.
9.2 Notwithstanding any other provisions in these terms and conditions the Company does not in any way seek to exclude or limit any liability in respect of death or personal injury arising as a result of any willful act or omission or negligence on the part of the Company.
9.3 The Company shall not be liable for any breach of these terms and conditions or for any failure in whole or in part to perform any of its duties and obligations resulting from any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining raw materials, energy or other supplies, or trade disputes of whatever nature, or for any other reason outside its direct control including without limitation any delays by any third party supplier of goods or services for the purposes of the Project.
10.1 Without prejudice to any other rights or remedies the Company shall be entitled to terminate forthwith by notice in writing to the Client any contract with the Client:
10.1.1 if the Client shall commit any material breach of the contract (including these terms and conditions) and, if such breach is capable of remedy, shall have failed to remedy the same within 7 days of written notice from the Company requiring such breach to be remedied; if the Client enters into liquidation (other than for the purposes of effecting a reconstruction or amalgamation where solvent), makes or seeks to make any arrangement with or convenes a meeting of its creditors, has a receiver appointed over all or any part of its assets, has an administration order made against it, or (being an individual) becomes bankrupt, or if the Client takes or suffers any similar action in consequence of debt in any jurisdiction, or ceases for any reason to carry on business.
11.1 Employees of the Company are under an obligation not to seek or accept employment with clients. It is therefore a condition of all contracts between the Company and the Client that, during the course of any Project and for a period of one year thereafter, neither the Client nor any firm or company associated with the Client will engage or employ, whether as an employee or on a freelance basis, any of the employees of the Company who have been concerned in the Project.
12.1 The Company will present a credentials pitch for individual projects if requested to do so, at no fee cost. We reserve the right to charge travel expenses with prior agreement from client.
12.2 Should the pitch require creative or strategic content, the Company is happy to provide this but we do ask for a sensible fee for developing the work that we provide, even if the pitch is unsuccessful. Client agrees that the pitch fee covers the work involved in creating the pitch presentation only, and all IPR in the resulting creative or strategic work demonstrated will remain the property of the Company. If the pitch is successful, and the content is then used in project development, any pitch fee will then be offset against and incorporated into overall project costs.
12.2.1 The Company doesn't enter into free creative or strategic pitches, as we believe this is unfair to our existing clients and a drain on resource, time and money. This also applies where the Company is an existing contractually rostered agency.
13.1 As a professional Strategic Creative Agency, the Company attracts clients of the highest calibre, and is often invited to work on projects with a degree of competition, or closely related within a category or sector. The Company reserves the right to choose its client list, but exclusivity or non-compete clauses will be considered only if there's a commercially acceptable reason for doing so.
14.1 All rights and remedies of the Company shall be cumulative and not exclusive of any other rights and remedies provided by law.
14.2 No waiver by the Company of any rights or remedies shall be effective unless in writing. Any such waiver shall not prejudice the Company's ability to exercise such rights or pursue such remedies at any time in the future.
14.3 Notices may be given to the Company at its registered office and by the Company to the Client at its registered office (if a company) or other last known address.
14.4 All contracts between the Company and the Client shall be governed by and construed in accordance with the laws of England and Wales. For the benefit of the Company the Client irrevocably agrees to submit to the jurisdiction of the English courts in regard to any dispute touching or concerning the performance of any such contract or the validity or construction of the contract (including these terms and conditions) but without prejudice to the right of the Company to bring or enforce proceedings in any other court or tribunal having jurisdiction.
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